Sunday, July 27, 2014

My earlier post on the Hobby Lobby decision sparked a lively discussion, so I went back and actually read the Court's opinion. Not much there that I didn't already know, with one notable exception: I had believed that the Court invented the idea that corporations are people out of whole cloth, and that turns out not to be true. It turns out that there is a law called the Dictionary Act, enacted in 1871, which says:

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

That would seem to make it pretty open-and-shut: according to the law, corporations are persons. Right?

No.

In 1897, the Indiana legislature almost passed a bill that would have defined the mathematical constant pi to be 3. (The popular story that some state actually did pass such a law turns out to be a myth.) But if the law had passed that would not in fact have changed the value of pi. It would still be 3.14159265... notwithstanding what the law said. And the fact of the matter, law or no law, is that corporations cannot hold religious beliefs because corporations are not conscious entities.

But even as a matter of law, relying on the Dictionary Act is questionable because the Act opens by saying, "In determining the meaning of any Act of Congress, unless the context indicates otherwise—" [emphasis added]. And in this case, the context clearly indicates otherwise, as Justice Ginsberg makes clear in her dissent:

This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations. [Emphasis added.]

Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious ex- emption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opin- ion concurring in part and dissenting in part).

But what about churches? Read on:

The First Amendment’s free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many individuals, religious activity derives meaning in large meas- ure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “spe- cial solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), how- ever, is just that. No such solicitude is traditional for commercial organizations.15 Indeed, until today, religiousexemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U. S., at 337.16

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air­ lines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight.

Commenter Publius asked:

What is the essence of business organization that eliminates religious rights?

The answer is right there in the question: it's a business organization, not a religious organization. If a group of people get together for the express purpose of exercising a religious faith (as in a church) that reduces the possibility of religious conflict (thought it does not eliminate it entirely). If a group of people get together to engage in commerce then it is all but inevitable that, if those people do not check their religion at the door then there will be conflict. It is specifically illegal to discriminate in hiring on the basis of religious beliefs, and the chances that you will end up by chance with a group of employees whose religious beliefs align with those of the company's owners is indistinguishable from zero. There are only two possible ways to resolve this inevitable conflict: 1) resolve it arbitrarily in favor of one group or another. This is what the Supreme Court as done. It has resolved the conflict arbitrarily in favor of owners at the expense of employees. Or 2) do what the country has done successfully for over 200 years and keep commercial companies secular.

I vote for option 2.

With regards to my charge of hypocrisy because Hobby Lobby's 401k plan invests in companies that make contraceptives to which its owners claim to be morally opposed, Publius writes:

Claim 1: Hobby Lobby is an investor in drug makers that make the drugs they object toTruth 1: The HL employee 401(k) plan is a separate trust, and is neither owned or controlled by Hobby Lobby.Claim 2: Hobbly Lobby pays an insurance premium, which only indirectly enables others to make moral choices.Truth 2: HL is self-insured, so it does not pay insurance premiums. It pays an insurance company a fee to administer the health plan, but all costs are paid by HL. There is not risk pooling, or comingling of funds - the cost of employee medical care comes directly from HL's income.

I must confess that I am not well versed in the subtleties of 401k law. But this site says:

According to federal law, employers (known as "plan sponsors") are responsible for picking the 401k plan funds.

So HL, if they chose to, could offer only funds that do not invest in birth control companies (surely such funds exist). That leaves open the possibility that (Publius again):

Hobby Lobby does not seek to control the moral choices of others.

That is not consistent with being Christian. Seeking to control (at least indirectly) the moral choices of others is part and parcel of Christian doctrine, as Publius himself points out:

Some religions require participation in public life - say, Christianity, which has the Great Commission to go forth and spread the Good News to all nations.

Nonetheless, now that I've looked into it a little further it does seem that the preponderance of the evidence is that the Hobby Lobby folks actually are not trying to foist their beliefs on others. So I withdraw and apologize for my earlier speculation that they are motivated by money and patriarchy.

I don't withdraw the charge of hypocrisy because, as I said, AFAICT Hobby Lobby could, if it chose to, constrain its 401k to not invest in birth control, but it doesn't. They could also choose to not self-insure, which would put additional distance between themselves and the sinful behavior of their employees. Whether or not this would be enough to satisfy them or their god I cannot know, which is exactly the problem. No one can know that except the owners of Hobby Lobby. Which is exactly why the best way to insure everyone's religious freedom is to keep it in the church, the home, and perhaps in the town square. But not in the office.

Wednesday, July 09, 2014

I don't know how long LinkedIn has been doing this because I hardly ever use my account, but today I accepted an invitation from someone and was taken to this screen:

It took me a moment to realize that LinkedIn was actually asking me, not for my LinkedIn password, but for my email password. At the risk of stating what should be obvious, you should NEVER EVER give your email password to ANYONE. Anyone who has your email password owns you. They can, if they choose to, reset the password on any other account you have, including your on-line baking and brokerage accounts.

But, you may object, LinkedIn is a reputable company. They would never do that. Trying to break in to their customers' bank accounts would be incredibly stupid. They'd be caught, and that would put them out of business. And this is true. But breaking in to your bank accounts is far from the only thing that someone with your email password can do. They can also (again at the risk of stating the obvious) read your email. And LinkedIn absolutely will do that. How do I know? By looking at the fine print of what they promise not to do: "We will not store your password or email anyone without your permission." Even if we take them entirely at their word, they have just tacitly admitted that they are going to download everything in your inbox and store that. In fact, the whole point of getting your email address is so they can download your contacts list, and the most effective way of getting that is to download all your email and see who you've already corresponded with. And if they should happen to collect some additional data on you along the way that they might be able to sell to some marketing company, well, where's the harm, right? I mean, those fine folks at LinkedIn need to make a living too, no?

What bothers me about this no so much that they are doing it, but the surreptitious way they are going about it. If they were up-front about it, "Please give us your email password so we can log in to your account and collect your contacts list" (or, even better, "Please give us your password so we can break in to your account and rummage around in whatever we might happen to find there") that would be fine. But LinkedIn obviously knows that no one would give them permission to do this if they knew what LinkedIn's real intentions were, so they have to be sneaky.

I'm starting to think that LinkedIn is an intelligence test: anyone who actually uses it has failed.

Sunday, July 06, 2014

The fundamental problem with religion is that it is by definition impervious to reason, and hence there can be no hope of reasonable reconciliation of religious disputes. The best we can accomplish is for people to agree to disagree. The best way of achieving that is the First Law of Social Harmony: no one should attempt to impose their religious views on others without their consent. A corollary to the First Law is that government, which is empowered to to use violence to enforce the law, should not attempt to impose any religious views on anyone. This is the essence of the First Amendment, which until this week made the United States a vibrant, diverse, and religiously peaceful nation. A violent sectarian struggle of the sort that happens regularly, maybe continuously, in the Middle East would have been unthinkable here.

The Supreme Court has been gutting the First Law of Social Harmony for a while now. They began when they decided to impose a religious view (or at least a false one) on the people of the United States without their consent, namely, that corporations are people. Corporations are plainly not people, they are groups of people. Moreover, they are groups of people organized in a particular way for a particular purpose, namely, in a hierarchical, occasionally feudal, but almost always non-democratic way for the purpose of engaging in commerce. Corporations are a human invention, a technology, that we built for the purpose of organizing our activities to achieve a purpose. They are not a part of the natural order of things, and they are plainly not persons.

The Court elaborated on this fiction this week when it decided that corporate non-persons can have religious beliefs which are protected by the First Amendment. But, of course, in point of fact a corporation cannot have a religious belief because a corporation is not a person. No corporation ever attended a church. No corporation has ever been baptized. No corporation has ever received God's grace. Corporations do not go to the rainbow bridge when they go out of business.

The Court's hypocrisy is plainly laid out in its own rhetoric: corporate personhood for the purposes of religious protection extends only to closely held corporations. In this constraint the Court tacitly acknowledges the manifest absurdity of corporations having religious views. If the group of actual human persons running the corporation is small enough to have identifiable religious views, then that group of people may, under cover of the fiction of corporate personhood, impose their religious beliefs on their employees. But, of course, that train only runs one way.

As is so often the case, it is hard to tell which is more disturbing: that certain wealthy individuals are being granted the power to impose their beliefs on others, or that this is being done in the name of religious freedom.

Postscript:

There is no sport in finding logical contradictions in religious views, but it really bothers me when religious leaders can't even get their own theology right. I stumbled across this article written by Rabbi Daniel Brenner, arguing against the Hobby Lobby decision. But the reasoning is such a mess:

Jewish ethics on contraceptive use are rooted in our earliest religious texts. If you can think back to your earliest childhood encounters with the Book of Genesis, you might recall the first divine command -- Genesis 9:1 -- "be fruitful and multiply!" The rabbinic sages of the fifth and sixth century looked closely at that passage and raised a compelling question, "Was the Holy One speaking only with the 'sons of Noah' or with women and men?" The conclusion of the great rabbis? Only men are commanded to be fruitful and multiply. Later rabbis clarified that being "fruitful" meant that men are obligated to have a male and a female child. The command to have a son and a daughter is a moment of indirect gender equity in a narrative that is often focused on gender difference and strict gender codes based on dress, religious duties, legal witnessing, and a host of other categories.

The rabbis of the Talmud concluded that men were commanded to have children, so any man who engages in a sexual act with a woman and uses a type of birth control that prevents him from fulfilling this command is, according to the ancient rabbis, going against divine law. (Some contemporary rabbis have allowed and encouraged condom use to prevent disease -- but this is a relatively modern position.) The classic example from the Torah is the story of Onan -- who spills his seed on the floor rather than impregnate his wife. Medieval rabbis explained that his act was an act of vanity -- he was obsessed with his wife's thin body and thought that pregnancy would ruin her. Their comments prove that even 1,500 years ago rabbis were worried about the objectification of women by men.

Since women are not, according to the rabbis, commanded to have children, then birth control, in some cases, is permitted by divine law.

Here's what the Bible has to say about it:

Ge1:27 So God created man in his own image, in the image of God created he him; male and female created he them.

Ge1:28 And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.

I don't see anything in there about the commandment to "be fruitful and multiply" being directed specifically at men. And here's what the Bible says about Onan:

Ge38:7 And Er, Judah's firstborn, was wicked in the sight of the LORD; and the LORD slew him.

Ge38:8 And Judah said unto Onan, Go in unto thy brother's wife, and marry her, and raise up seed to thy brother.

Ge38:9 And Onan knew that the seed should not be his; and it came to pass, when he went in unto his brother's wife, that he spilled it on the ground, lest that he should give seed to his brother.

Ge38:10 And the thing which he did displeased the LORD: wherefore he slew him also.

Again, not a word about "his wife's thin body." To the contrary, the reason Onan doesn't want to impregnate his wife is because she is not his wife, she is his brother's wife! The reason Onan needs to impregnate her is because his brother, Er, was killed by God and it is now his duty to impregnate her.

Again, none of this is problematic if it stays between a man and his god. But when you give business owners the power to impose this kind of insanity on everyone it's a big, big problem.